Stewart Stevens v City of Sydney

The site and its context

1. The site is legally identified as Lot 1 in Deposited Plan 59718. It is rectangular in shape and measures approximately 140sqm in area. It has a frontage of approximately 6m to both Yurong Street and Seale Lane at the rear of the site. The site currently contains a three storey terrace dwelling, which presents as a two storey terrace with pitched roof to Yurong Street.
2. Surrounding land uses are generally residential. There are some commercial uses, including ground floor commercial/cafe/retail, located towards Liverpool and Stanley Streets.
3. Relevantly the site adjoins a five storey residential flat building to the north, a three storey (two storey street frontage) terrace dwelling to the south, and a two storey residential flat building across Yurong Street to the west.
4. The site also adjoins a row of three storey (two storey street frontage) terrace dwellings which front Francis Street, and a six storey residential flat building across Seale Lane to the east.
5. The site is not a heritage item. However a number of surrounding sites contain heritage items including 54 - 72 Yurong Street, 17, 33 - 35 and 41 - 51 Francis Street.
6. The site is located in the East Sydney Conservation Area, and is identified as a 'Contributory' building.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate is not required as the proposed works do not exceed $50,000 in construction cost.
3. Sydney Local Environmental Plan 2012 (LEP 2012) applies to the site. Relevant to this appeal are the following aims (cl 1.2(2)): … (h) to enhance the amenity and quality of life of local communities, … (j) to achieve a high quality urban form by ensuring that new development exhibits design excellence and reflects the existing or desired future character of particular localities, (k) to conserve the environmental heritage of the City of Sydney, .…
4. Pursuant to LEP 2012 the site is zoned R1 - General Residential. The proposed dwelling alterations and additions are permissible with consent. It is agreed between the parties that the proposed development is consistent with the zone objectives.
5. LEP 2012 imposes a maximum height of 15 metres, and a maximum floor space ratio (FSR) of 2:1 on the site. The development complies with these controls.
6. Given the site is mapped within the East Sydney heritage conservation area (C13), and contains a contributory item, cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the City of Sydney and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, and the adjacent heritage items, at sub-cl (4).
7. Council argues that the development has a significant and detrimental impact on the heritage conservation area, and the adjoining heritage items. Council contends that the application does not meet the requirements of cl 5.10(4) and should not be granted consent.
8. LEP 2012 at cl. 6.21 addresses Design Excellence. Sub-cl (2) states (2) This clause applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.
9. As external alterations to an existing building are proposed, sub-cl (3) provides that development consent must not be granted unless, in the opinion of the consent authority, the development exhibits design excellence. This clause acts as a precondition to consent.
10. Council contends the development does not satisfy the design excellence provisions at cl. 6.21(4): In considering whether development to which this clause applies exhibits design excellence, the consent authority must have regard to the following matters: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, … (d) how the proposed development addresses the following matters: … (iii) any heritage issues and streetscape constraints, … (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, …
11. Council contends that the proposal does not meet the requirements of cl 6.12(4) and should not be granted consent.
12. The Sydney Development Control Plan 2012, (DCP 2012) applies to the proposal. The aims of DCP 2012 relevant to the appeal are as follows: (a) encourage development to respond to its context and is compatible with the existing built environment and public domain; … (f) encourage design that maintains and enhances the character and heritage significance of heritage items and heritage conservation areas; …
13. Section 2 of DCP 2012 applies to the development as the subject site is located in the East Sydney Locality. Clause 2.4.9 the locality is described as (extract): The built form comprises low scale buildings in the valley framed by taller buildings on the surrounding ridges. This sense of enclosure is reinforced by taller commercial/retail buildings located along the major roads of College, William and Oxford Streets, while the regular small lot pattern streets to the centre of the neighbourhood are predominantly residential terrace housing. The existing general built form character of the area is to be maintained and reinforced with taller buildings located along ridges and major roads towards the perimeter of the neighbourhood. Low scale buildings and residential pockets are to be maintained towards the centre of the area in the valley. … The heritage streetscape character and small lot subdivision pattern of the residential pockets together with consistent residential streetscapes and and the remnant Victorian character of buildings are to be maintained. …
14. Council contends that the following principles under Clause 2.4.9 are relevant to the assessment of the application: (a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles … (f) Maintain the predominant Victorian heritage character of the area.
15. Section 3 of DCP 2012 articulates the general provisions within the DCP, relevantly clause 3.9 addresses heritage. The objectives of this clause are to: (a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas, and development affecting archaeological sites and places of Aboriginal heritage significance. (b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.
16. The DCP, at clause 3.9.5, provides controls for development in proximity to a heritage item. The development controls at 3.9.5 (3) are applicable: (3) Alterations and additions to buildings and structures and new development of sites in the vicinity of a heritage item are to be designed to respect and complement the heritage item in terms of the: (a) building envelope; (b) proportions; (c) materials, colours and finishes; and (d) building and street alignment.
17. Clause 3.9.6 states: New development in heritage conservation areas must be designed to respect neighbouring buildings and the character of the area, particularly roofscapes and window proportions. Infill development should enhance and complement existing character but not replicate heritage buildings. (1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: (a) topography and landscape; (b) views to and from the site; (c) significant subdivision patterns and layout, and front and side setbacks; (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; (e) the interface between the public domain and building alignments and property boundaries; and (f) colour schemes that have a hue and tonal relationship with traditional colour schemes. Council contends that the application does not meet the controls in Section 3 of DCP 2012.
18. The subject site contains a contributory building within the HCA. Therefore, clause 3.9.7 of DCP 2012 applies. The following controls within this clause are relevant to the proceedings: … (2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; …
19. Section 4 of DCP 2012 provides the specific controls for terrace houses. Relevant to the contentions in these proceedings the DCP contains the following relevant objectives and controls: Section 4.1.3: Residential Amenity (a) Maintain or enhance residential amenity by ensuring adequate solar access, landscaping, deep soil planting, visual and acoustic privacy and ventilation. … Clause 4.1.3.1: Solar access (a) Buildings are to be designed and sited to provide solar access to: (i) private open space within the site and of adjoining dwellings; (ii) habitable rooms within the development and in adjoining developments; … Clause 4.1.3.5: Private Open Space (1) Private open space at the ground level is to have a minimum area of 16sqm and minimum dimension of 3m. (2) Private open space is to be directly accessible from the living area of the dwelling and capable of serving as an extension of the living area. Section 4.1.4 Additions and alterations (a) Achieve sympathetic development and maintain the fabric of existing terraces. (b) Protect and respect the traditional character and heritage significance of heritage items and heritage conservation areas and contributory buildings by: (i) ensuring additions are of an appropriate scale and appearance and relate to the scale and character of the existing building and the street;(ii) minimising alteration of the original building and respecting the uniformity of an intact pair, group or row of buildings. Clause 4.1.4.1: General (1) Additions must not remove significant building or site elements or outbuildings that contribute to the heritage significance of the heritage item or conservation area. (2) Additions must maintain the profile and form of the original building, including the roof form, and allow the original building to be discerned. (3) Additions must not extend beyond the predominant rear building alignment at any level of a group or row of buildings. Clause 4.1.5: Roof alterations and additions Objectives: (a) Minimise the impact of dormers and skylights on the form, appearance and fabric of the principal roof form. … (c) Minimise interference to the original form of the building. (d) Minimise the impact on original and existing building elements. Clause 4.1.5.1: Ensuring sympathetic roof alterations and additions (1) Roof alterations and additions must: (a) complement the details and materials of the original roof; (b) not detract from the architectural integrity of the principal elevation of a heritage item, contributory building, or an intact group of buildings in a heritage conservation area; and (c) respect the form, pitch, eaves and ridge heights of the original building. … (4) Roof additions are not to include inset balconies, roof terraces or external staircases. … Clause 4.1.8: Balconies, verandahs and decks Objectives: … (b) Ensure balconies, verandahs and decks contribute to building design quality and respect the visual and acoustic privacy of neighbours. … Controls: (1) Balconies and decks above the ground floor are to be: (a) located and designed to minimise overlooking of surrounding buildings; (b) of a size, location and design appropriate to the proportions of the building; and (c) avoided at the rear and side of a dwelling.

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2012. One submission was received which raised concerns in regard to an increase in noise and loss of privacy from the roof terrace and noise impacts from plant associated with the lift addition.
2. Expert Evidence
3. The Court heard expert planning evidence from Mr Scott Barwick, for the applicant, and Ms Erin Dyer and Ms Julia Pressick for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 8.
4. The Court heard expert heritage evidence from Mr Robert Staas, for the applicant, and Mr Hendry Wan for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 9.

Are the amenity impacts to the adjoining properties that arise from the proposed terrace acceptable?

1. Primarily Council contends that the approval of the roof terrace will have unacceptable impacts on Unit 21 in the adjoining property at 37-39 Francis Street. This is an existing residential flat building which adjoins the subject property to the North. Council also raises concern about the impact of the proposed terrace on the visual and acoustic privacy of 41,43 and 45 Francis Street, and the adjoining property at 54 Yuong Street.
2. Ms Dyer's evidence is that clause 4.1.5.1(4) of DCP 2012 states that roof additions are not to include inset balconies, roof terraces or external staircases. Ms Dyer's assessment is that roof terraces are not characteristic of terrace dwellings, and are discouraged by the controls in the DCP in part due to their amenity impacts on adjoining properties. She concludes that the proposed terrace will overlook the rear yards of 41, 43 and 45 Francis Street, and the rear yard of the adjoining property at 54 Yuong Street. It is her evidence that the rear roof terrace will also overlook the adjoining windows at 37-39 Francis Street. It is her assessment that, due to the proximity of the proposed terrace to these windows, the adjoining residents' acoustic privacy will be impacted.
3. In seeking to address Council's contentions, the applicant proposes an obscure glass privacy screen of 2m length across the width of the terrace, with a 1m return. The privacy screen is proposed to be 1.8m high.
4. In relation to visual privacy Ms Dyer's oral evidence is that whilst the screen will be effective in reducing direct views, it is only so when an observer is contained within the extent of the screen. She argues that from other locations on the terrace oblique views are available both into unit 21, and the rear yard of properties to the East.
5. Ms Dyer concludes that as a result of these impacts the development does not meet the test in Section 4.1.3: Residential Amenity of DCP 2012 that development maintains or enhances residential amenity. For the above reasons she does not support a variation of the DCP control for the proposed development.
6. In the alternative, Mr Barwick argues it is not correct that the DCP at cl 4.1.5.1(4) does not permit rear roof terraces. It is his evidence that the DCP, at cl 4.1.8.1 (Balconies, Verandahs and Decks), provides the merit factors that should be considered in the assessment of these terraces. These considerations are that: they be located to minimise overlooking; be of a size, location and design appropriate to the proportions of the building; and be avoided at the rear of a dwelling.
7. Mr Barwick does not share the concerns of Ms Dyer that the development will allow overlooking to 41, 43 and 45 Francis Street due to the distance between the properties. In relation to the adjoining neighbour to the south it is his evidence that given the location of the existing chimney and the angle of view available from the proposed terrace, at the most, a view would be available to the parking area at the interface of the laneway.
8. In considering the windows of unit 21 at 37 - 39 Francis Street, Mr Barwick's evidence is that the effect of the reduced width of the terrace, its setback from the side boundary, and the limited capacity of the terrace to accommodate groups of people the impact of overlooking of the windows. It is his assessment that any view would be at oblique angles, and the associated privacy impact is not sufficient to warrant refusal of the application.
9. In relation to the impact on unit 21 and 37 - 39 Francis Street Ms Dyer argues that: Unit 21 is a studio unit, with two windows to the studio and one window to the bathroom. The window to the bathroom is already obstructed by the existing built form of the subject site. The western and eastern windows to the studio unit will be entirely obstructed by the proposed privacy screen… This is evidenced by photos taken from the western and eastern windows to unit 21. The existing outlook is considered important for unit 21 because it contributes to a sense of place. … Similarly the existing availability of daylight to these windows is considered important for the amenity of the occupants. It is considered that the current access to daylight is better than daylight which is obstructed by privacy screens to a rear roof terrace which is not permitted by the DCP. (Exhibit 8)
10. During their oral evidence, the expert planners were asked to complete an assessment of the extent of the living room window of Unit 21 impacted by the proposed privacy screen. It was accepted by the experts that the proposed privacy screen would obstruct 66% of the current glazed window area.
11. In relation to the outlook from Unit 21, it was Ms Dwyer's assessment that the views impacted were district views, and that as the development exceeded council's controls, the impact was unreasonable. She categorised the impact to the living / bedroom window as devastating, and the impact to the kitchen window severe.
12. Mr Barwick whilst agreeing that applying a direct elevation of assessment the privacy screen would impact 66% of the existing view from windows in the living/bedroom, argues that, from the photos appended to the joint expert report, it is difficult to include consideration of the sweep or angle of view available from this window, particularly to the East. It is his assessment that the development should not be considered non-compliant as the relevant objectives of the control are met. It is his evidence that the impact is of appropriately categorised as severe for the living/bedroom window and moderate for the kitchen window. In his oral evidence, he acknowledged that a smaller terrace may have less impact.
13. It is agreed between the experts that the proposed roof top terrace will receive 0.8m² of solar access at 9 AM in midwinter. Council argues that it therefore does not perform the function of a private open space (as defined by DCP 2012). However Mr Barwick argues that due to the site's eastern orientation the deck will receive early morning light and district outlook, both of which are valuable to the applicant.
14. There is no expert acoustic evidence before the Court. The Council contends that: the rear roof terrace will result in a reduction in acoustic privacy for the adjacent properties at 37 - 39 Francis Street.
15. Mr Barwick's evidence is that the proposed privacy screen could reasonably be conditioned to act as an acoustic barrier. He argues that the use of the terrace will be restricted to a small table and chairs and whilst this is in addition to the current approval, it is unlikely to have an unreasonable impact.
16. In the alternative, Ms Dyer argues that the development is inconsistent with cl. 4.1.3 of the DCP which seeks to maintain or enhance residential amenity. It is her evidence that the privacy and outlook impacts mean that the variation to the DCP controls sought by the applicant is not an appropriate, or acceptable, alternative to compliance with the controls. It is her view that the recent approval represents the maximum achievable on the site when consideration is given to Council's controls, the specific characteristics of the site, and its location. It is her assessment that in comparison with the roof terrace, the amenity impacts from the dormer window (in the current approval) are less than the terrace on account of the reduced cone of vision, the nature of it being an internal room, and the raised sill height of the windows (to 1.4 m).
17. It is the evidence of Ms Pressi that the proposal will increase the potential of the use of the remainder of the property's roof. She refers the Court to the objection received, and Exhibit 13, which includes photographs of residents occupying the existing roof. It is her view that given the approved roof has 1% fall, compared with the existing pitched roof, and only a 1.2 m balustrade separation it will be attractive for use for recreation. Her oral evidence agrees with the conclusion of Ms Dyer that the proposal does not achieve the objectives of Cl.4.1.3 to maintain and improve residential amenity.
18. In contrast it is the evidence of Mr Barwick that: The configuration of the terrace and its location of bedroom 3 support its intended use as an amenity for the occupant of the bedroom, maximising the district views available and a space that provide access to sunlight far superior to the access to sunlight afforded by the ground level private open space. Therefore in considering part 4.1.8.1 (1) of DCP I consider that the terrace/balcony: is located to minimise overlooking of surrounding buildings is of a size location and design (as agreed to be reduced) that is appropriate to the proportions of the building cannot be avoided from being provided to the rear, and is in a location or be approved for a flat skillion roof In terms of the application, overall Mr Barwick concludes that the proposal, as modified, satisfactorily balances visual and acoustic privacy and does not result in adverse overshadowing or loss of solar access (Exhibit 8).
19. Ms Hemming's submits that the relevant DCP controls must be the focal, and starting point, for the applications assessment. Further, it is her submission that these controls are inadequately addressed in the statement of environmental effects supporting the application, and the argument for the variation to the controls is not well argued. Given the wording of the DCP at Cl.4.1.5.1, it is Ms Hemming's submission that it is clear that any alternative solution would need to address the objectives at Cl.4 18 (b), namely to ensure balconies, verandahs and decks contribute to building design quality and respect of visual and acoustic privacy of neighbours and Cl.4.1.3 in relation to overall residential amenity. She concludes that, on the basis of the evidence of Council's experts, the Court should not support the alternative solution proposed by the applicant as the objectives of the relevant controls are not met. She submits that such a variation to the controls should only be accepted when the alternative achieves the objectives of the control as required by s79C(3A) of the Act.
20. Mr Stevens submits that the objective of the owner in seeking the additional rooftop terrace is twofold: firstly to achieve an open space with solar access; and secondly to provide an open space of adequate width to accommodate a table and chairs. He argues that in his view the impact of the terrace is no more detrimental than the impact that arises for his property from the adjoining residential flat building. Mr Stevens' submission is that the proximity of this adjoining building, and its large number of windows, affect his privacy as they overlook his rear yard.
21. Mr Stevens submits that the roof terrace, as now amended, is an improvement, and that the inclusion of the privacy screen addresses any potential privacy impacts that may arise. He submits that the privacy screen is also an improvement for the owner of the subject property as it provides a private outdoor space. He concludes that, on the basis of the evidence of Mr Barwick, any amenity impacts have been reduced and are not severe enough to warrant refusal of the application.
22. Mr Stevens refers the Court to the existing roof top terraces that exist in proximity to the site, in particular developments at 1 and 2 Printers Lane, and Victorian terraces at 60 Yurong Street. It is his view that roof terraces are characteristic of the area. In response to Council's contention that by the provision of the roof terrace the roof of the building itself will be accessible, Mr Stevens asserts that the availability of the upper level terrace will reduce the desire to access the roof itself.

Findings

1. The fundamental issue for determination in this appeal is whether the Council's controls should be varied to allow the development, and whether in doing so, the resultant impacts on adjoining residents are acceptable. In this case the objectives of the relevant controls squarely place the consideration of visual and acoustic privacy, and amenity of neighbours as an objective of the control [par 28].
2. The relevant provisions of DCP 2012 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, the introduction of the provisions in s79C(3A) has mandated a more flexible approach to the matters the subject of dispute between the parties. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards. This is relevant in these proceedings as the applicant seeks a variation to the controls in Council's DCP as they relate to roof terraces.
3. On the basis of the expert evidence before the Court I am not persuaded that the objective is met. I accept the evidence of Ms Pressi that in seeking to ameliorate the privacy impact of the terrace the applicant's privacy screen will reduce the outlook and amenity for the adjoining resident at unit 21.
4. The applicant has provided no evidence to respond to the Council's contention that the proposed terrace will have acoustic impacts on immediate neighbours. As part of the proceedings the submissions of adjoining neighbours, and evidence from previous complaints to the Council were tendered (Exhibit 13). These documents include details and photographs of the use of the roof as an outdoor recreation space and details, at least from the resident's perspective, the impact of this use. I accept that due to the proximity of the terrace to the unit block at 37-39 Francis Street it is foreseeable that the use of the terrace will create additional noise. I have insufficient evidence that the alternative proposed by the applicant achieves the objective of the control, namely to respect the acoustic privacy of neighbours. The onus is on the applicant to demonstrate that the alternative solution they propose is capable of meeting the object of the controls, without compliance with the relevant standard.
5. Pursuant to s79C(1)(b) I find that the likely impacts of the development warrant refusal of the application.

Does the development represents design excellence, and are the variations to Council's DCP sought are warranted?

Findings

1. The Council's LEP provides a precondition at cl 6.21 that requires the consent authority to consider, amongst other things, at (d) how the proposed development addresses environmental impacts, such solar access, visual and acoustic privacy. I find, for the reasons outlined above [at par 56-57] that the provisions of clause 6.21(4)(iii) are not met. For these reasons, and the failure to the meet the precondition, consent cannot be granted.
2. Section 79C(3A)(b) of the Act requires a flexible approach to the application of DCP standards, allowing alternative solutions that would achieve the objects of the relevant standards. I find, for the reasons outlined above that the proposal is not an alternative that achieves the objectives of the relevant controls and the variations to Council's controls are not warranted in this instance.
3. Costs
4. During the proceedings, leave was granted to rely on amended plans. This was not opposed by the Council, subject to consideration of costs that were thrown away by the preparation of expert evidence.
5. The changes to the proposal are detailed at [3]. The amended plans sought to address issues raised by the experts in their joint conference, consistent with the usual practice of the Court (Marinkovic v Rockdale City Council [2006] NSWLEC 601).
6. Section 97B of the Act provides that if leave is provided for an applicant to file an amended application that makes other than minor amendments, the Court must make an order for the payment by the applicant of those costs as set out in s97B(2). Having regard to the matters raised in Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15, Pepper J [at 42] I find the amendments made by the applicant, whilst responsive to the issues raised by the experts in this case, are not appropriately classified as minor, when considered in the context of the development proposed. As such, an order as to costs must follow.
7. Conclusion
8. Given my determinations provided in the preceding it is not necessary for me to determine whether the impact of the development on the heritage significance of the HCA is significant or consider the parties arguments as to any precedent effect of an approval of this application.
9. Orders:
10. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. The applicant is to pay the Respondent's costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed; 3. The appeal is dismissed; 4. Development application D/2016/1471, that sought consent for additions and alterations to terrace dwelling with secondary dwelling including lift extension to roof level and roof terrace at 52 Yurong Street, Darlinghurst, is refused. 5. The exhibits are returned with the exception of exhibits A, B and 11. ……………. D M Dickson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2017